Opinion
1:05-cv-1803-LJM-WTL.
July 26, 2007
ORDER ON DEFENDANTS' MOTION FOR RECONSIDERATION OR, ALTERNATIVELY, TO CERTIFY ORDER FOR INTERLOCUTORY APPEAL
This cause is before the Court on defendants', Karl Buetow and West Central Conservancy District (collectively, "Defendants"), Motion for Reconsideration or, Alternatively, to Certify Order for Interlocutory Appeal. On June 22, 2007, this Court denied Defendant's Motion for Summary Judgment with respect to plaintiff's, James Foxworthy ("Foxworthy"), First Amendment retaliation claim. The Court held that it could not "conclude as a matter of law that a person of ordinary firmness would not desist in his protected activity under the circumstances presented in this case." Defendants argue that the Court ignored the requirement that Foxworthy must show that he and not merely some person of ordinary firmness was deterred from exercising his First Amendment rights. Based on the law, as interpreted by this Court, the Court is not persuaded by Defendants' argument and DENIES Defendants' Motion for Reconsideration.
However, the Court finds that its "order involved a controlling question of law as to which there is substantial ground for difference of opinion" and that "an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). As such, the Court GRANTS Defendants' Motion to Certify Order for Interlocutory Appeal.
Defendants have also filed a notice of appeal as of right from the same order, issued on June 22, 2007, which denied Defendants' motion for summary judgment on grounds of qualified immunity.
This case is STAYED pending resolution of Defendants' appeal.
IT IS SO ORDERED.